Scalia addresses Tea Party Caucus – but should he?

Critics question the propriety of a sitting justice attending a closed-door partisan session, but the event organizer insists all members of Congress are welcome at the 'Conservative Constitutional Seminar.'

Supreme Court Justice Antonin Scalia, shown testifying before Congress in May 2010, intends to speak Monday at the Tea Party Caucus's 'Conservative Constitutional Seminar.' Critics say that Justice Scalia, like all Supreme Court justices, should avoid even the appearance of partisanship.

Kevin Lamarque / Reuters / File

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Is it it inappropriate for a Supreme Court justice to address a 'Conservative' events, or is this all a tempest in a tea pot?

Attending such a partisan event, they said – and particularly one that is closed-door – casts doubts about Justice Scalia's impartiality and raises the possibility of a political alliance with conservative members of Congress.

"By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the 'Justice from the Tea Party,'" the New York Times wrote, noting that they would have a similar objection to a justice speaking to a group on the political left.

But Scalia is going ahead with his plans, and Michele Bachmann, the Republican congresswoman from Minnesota who founded the caucus and is hosting the seminar, is trying to head off such criticisms by calling the seminar a "bipartisan event" and emphasizing that the doors are open to all members of Congress – though not to the media, nor will there be any official record of the event.

Rep. Bachmann told Politico that she is starting the biweekly lecture series to help new members of Congress understand the Constitution and Declaration of Independence before they are "co-opted into the Washington system."

It won't be the first time a Supreme Court justice has met behind closed doors with members of Congress. The Congressional Caucus on the Judicial Branch, a bipartisan caucus started in 2003 by a Republican and Democrat to strengthen relations between Congress and the Judiciary, occasionally hosts justices.

And some observers see the rumblings about Scalia as overblown. Slate called it the "overplayed story of the day" – suggesting that the stir has more to do with Bachmann and her motives – and M. Edward Whelan, president of the Ethics and Public Policy Center and a former Scalia clerk, told the LA Times that he saw nothing improper in Scalia's lecture. "My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group of members of Congress who invited him," Mr. Whelan said.

But others say there's a difference between justices appearing before a truly bipartisan group and one that has such a clear partisan agenda, and that the lack of transparency raises concerns.

"I think it’s outrageous that a Supreme Court justice would openly go to a political party meeting, particularly given all the issues around Citizens United [the 2009 decision about corporate political contributions] and all the issues that have come and will be coming before the Supreme Court," says Bob Edgar, a former congressman and the president and CEO of Common Cause, a nonpartisan watchdog group.

Mr. Edgar says that he is concerned with a growing pattern, particularly in the cases of Scalia and Justice Clarence Thomas – both of whom attended retreats sponsored by Koch Industries, which stood to benefit from the Citizens United decision – of some justices not carefully avoiding even the appearance of impartiality. "There are only nine justices, and the nine justices are supposed to be serving on behalf of all the people of the United States, not just the tea party, not just the radical right, not just the liberal left," says Edgar.